R. E. Sharp, Jr. v. Campbell Co. Bd. of Education & Campbell Co., TN

IN THE COURT OF APPEALS
AT KNOXVILLE FILED
March 31, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
R. E. SHARP, JR., ) CAMPBELL COUNTY CHANCERY
) E1999-00397-COA-R3-CV
Plaintiff-Appellee )
)
)
v. ) HON. BILLY JOE WHITE
) CHANCELLOR
)
CAMPBELL COUNTY BOARD OF )
EDUCATION and CAMPBELL COUNTY, )
TENNESSEE, )
)
Defendant-Appellant ) AFFIRMED AND REMANDED
J. STEPHEN HURST OF LAFOLLETTE FOR APPELLANT
MICHAEL G. HATMAKER OF JACKSBORO FOR APPELLEE
O P I N I O N
Goddard, P.J.
The Campbell County Board of Education appeals from a
decision of the Chancellor, who found that the plaintiff, R. E.
Sharp, Jr., was tenured in his position of assistant principal
and therefore the Campbell County Board of Education erroneously
reduced his salary when he was placed in a teaching position.
I. FACTS AND HOLDING OF THE CHANCELLOR
The facts as found by the Chancellor are the following:
(1) That Plaintiff has been hired and placed annually
by the Campbell County, Tennessee Board of
Education in a professional capacity, either as a
classroom teacher or assistant principal, since
1968.
(2) That plaintiff was hired and placed for three
consecutive hirings in the positions of assistant
principal, first at Campbell County Comprehensive
High School and then at Jacksboro Middle School.
(3) That therefore Plaintiff is a tenured employee
within the meaning of the general tenure law, and
within the meaning of the Private Acts of 1949 and
1980 applicable to Campbell County, Tennessee.
(4) That, as such, while plaintiff could be placed in
positions other than assistant principal, neither
the board of education nor the superintendent
could take any action to change plaintiff from one
position to another at a reduced salary, absent
filing a specification of charges against
plaintiff.
(5) That no such charges were filed.
(6) That Plaintiff met the eligibility endorsements to
serve in the position of assistant principal.
(7) That any action to reduce Plaintiff’s salary from
that earned by him as assistant principal was
improper, and therefore Plaintiff is entitled to
receive, from and after the school year 1992-1991
an annual salary commensurate with that he would
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have earned as assistant principal at Campbell
County Comprehensive High School.
(8) That, although Plaintiff through the Campbell
County Federation of teachers had heretofore filed
a grievance with regard to his reduction in
salary, and although the arbitrator ruled
adversely to Plaintiff in that grievance, the
arbitrator’s decision is not binding on this Court
and is not to be Plaintiff’s exclusive remedy
since the arbitrator ruled on an incorrect or
erroneous set of facts.
The Chancellor then ordered that the Plaintiff should
receive from and after the school year 1992-1993 an annual salary
commensurate with that he would have received as an assistant
principal and awarded Plaintiff past salary benefits in an amount
equal to the difference between the amount he would have earned
as an assistant principal and that paid to him as a classroom
teacher.
The Campbell County Board of Education appeals the
decision of the Chancellor.
II. ISSUE
The sole issue for our determination is whether the
trial court erroneously overruled the arbitrator’s decision
denying Mr. Sharp the salary of an assistant principal.
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III. LAW AND DISCUSSION
This is a non-jury case and, therefore, our scope of
review is de novo upon the record in the trial court. The
findings of the trial judge are presumed to be correct and must
be affirmed by us, unless we find the preponderance of the
evidence to be otherwise. Rule 13(d), Tennessee Rules of
Appellate Procedure. Summit Hill Associates v. Knoxville
Utilities Board, 667 S.W.2d 91, 96 (Tenn. Ct. App. 1983).
The record before us in this matter is sparse. It
consists of the following: a complaint filed on March 12, 1997; a
notice of appearance by defendant’s attorney; a motion to assign
a trial date filed on November 16, 1998; an answer filed on March
15, 1999, along with two exhibits, filed on the date of trial;
and, the judgment of the trial court filed on May 6, 1999. There
was no copy of any bargaining agreement entered into between the
teacher’s union and the school board during the relevant periods
of time. There was no transcript or statement of the evidence
filed by the parties.
This case triggers a well-settled legal principle. The
absence of a transcript of the hearing held before the Chancellor
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or a proper statement of the evidence means the facts found by
the trial court are conclusively presumed to be correct. See
generally, J. C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d
586 (Tenn. 1979). Furthermore, in the absence of a transcript
or statement of the evidence, we must conclusively presume that
every fact admissible under the pleadings was found or should
have been found favorable to the appellee. Wilson v. Hafley, 189
Tenn. 598, 226 S.W.2d 308 (1949); McDonald v. Onoh, 772 S.W.2d
913 (Tenn. Ct. App.1989); Irvin v. City of Clarksville, 767
S.W.2d 649 (Tenn. Ct. App.1988); Gotten v. Gotten, 748 S.W.2d 430
(Tenn. Ct. App.1987); In re: Rockwell, 673 S.W.2d 512 (Tenn. Ct.
App.1983); Kyritsis v. Vieron, 53 Tenn. App. 336, 382 S.W.2d 553
(1964). Appellate courts may only review what is in the record
and not what might have been or should have been included.
Dearborne v. State, 575 S.W.2d 259 (Tenn. 1978).
Campbell County Board of Education argues that the
appellant had submitted to “binding arbitration” the issue of his
salary reduction and the Chancellor should not be allowed to
overturn the decision of the arbitrator. As we stated earlier,
this argument is without merit because there was no bargaining
agreement included in the record before us.
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Therefore, we hold that in the absence of a transcript
a determination of the Court depending upon fact will not be
overturned unless the findings of fact are antithetical to the
judgment entered. Moreover, the absence of the bargaining
agreement being an exhibit in this record before us is fatal to a
determination in favor of the Campbell County School Board’s
binding arbitration argument.
IV. CONCLUSION
For the foregoing reason the Trial Court is affirmed
and the cause remanded for collection of costs below. Costs of
appeal are adjudged against the appellant, Campbell County Board
of Education.
_______________________________
Houston M. Goddard, P.J.
CONCUR:
________________________________
Herschel P. Franks, J.
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________________________________
Charles D. Susano, Jr., J.
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